Since 1853 there have subsequently
been five major updates to the nation’s original founding document (1). The somewhat strange part about Argentina’s
amendment process is that there is no formal way to change the constitution
without calling a national Constitutional Convention. In the original 1853 document, the need for
amendment must be brought up by congress and passed by a 2/3 majority. However, upon deciding that an amendment is
necessary, the constitution then says that the amendment “shall not be accomplished except
by a Convention called for such purpose.” (2)
The
reasoning behind Argentina’s chosen amendment system stems back to the drafting
of the original 1853 constitution. The political landscape was vey
divided, with the elites of Buenos Aires wanting to maintain their dominance,
and all of the provinces experiencing the harrowing effects of civil war. (CITE)
Buenos Aires was so set in their way, that they pulled their delegates from the
1853 Constitutional Convention. (CITE). The 1853 Constitution did pass but with
considerable difficulty and was shortly thereafter amended in 1860 to finally
include Buenos Aires.
As far as informal amendments go, the closest
Argentina seems to get is the allowance of amparo in the 1994 reform (2). Amparo basically allows any citizen to request
a judicial review of the constitutionality of something. Amparo rulings do not
fundamentally change the Constitution, but do require constitutional
interpretation by a judge and thus can set precedents. One point to keep in
mind is that Argentina has a history of coup d’états, and there have been
periods of military juntas with no real constitution (5). The military
uprisings could be seen as a testament to the lack of flexibility of the
Argentine Constitution, but I would say it’s unfair to blame the constitution
for the large amounts of political unrest prior to the juntas.
Elkins talks about flexibility,
specificity, and inclusion as the three most important factors in the endurance
of a constitution (6). In the case of Argentina, an initially exclusive and
less specific constitution has been reformed to become more inclusive and more
specific, all as a result of its flexibility.
(3) http://investigadores.cide.edu/gabriel.negretto/NegrettoL&SR.pdf
(6) Elkins
(Ch. 4)
By Sean Smalley
ReplyDeleteAs Jackson noted, five major updates to the original version of the Argentine Constitution have occurred. On every occasion, two-thirds of Congress must agree to amend and a constitutional assembly is convened, as Article 30 states “The need for its amendment must be declared by the Congress by a vote of at least two-thirds of its members; but the amendment shall not be accomplished except by a Convention called for such purpose” (3).
Although the process is difficult and extensive, I think it is logical for a constitutional assembly to be required in order to amend the constitution. Jackson described the history behind the writing of the original 1853 Argentine constitution. Argentina had recently defeated the dictator Juan Manuel de Rosas and was seeking to adopt a Constitution that decentralized power. The 1853 Argentine constitution was founded on federalism, where the numerous provinces that compose the nation had considerable autonomy (3). Therefore, when it became necessary to amend the constitution in the future, the process that involved a constitutional assembly best represented the entire country, provinces and all.
Jackson mentions in his post that the 1994 Argentine constitutional reform introduced elements of active judicial review in the form of amparos. An amparo is an action that protects all human rights not specifically protected by the constitution (1). However, an overlooked aspect of judicial review is its relationship to the executive branch. The amendments of the 1994 constitutional reform provided explicit regulation of legislative powers in the executive, though only in emergency situations (2). These decrees, or DNUs (decretos de necesidad y urgencia) do not require Congressional approval to take effect. The 1994 constitutional reform ensured that DNUs are not immune to judicial review. The judicial branch maintains the authority to review that the necessary and urgent requirements are fulfilled (2). The active judicial review provided by the 1994 constitutional reform serves as a newly installed check on executive power that was not present in the original 1853 constitution.
(1). 1994 amendment of the Argentine Constitution
http://en.wikipedia.org/wiki/1994_amendment_of_the_Argentine_Constitution
(2). Garro, Alejandro M (2006-2007) “Judicial Review of Constitutionality in Argentina: Background Notes and Constitutional Provisions”, p. 412
(3). Constitute https://www.constituteproject.org/constitution/Argentina_1994
As Jackson and Sean mentioned, the Argentine Judiciary executes active Judicial Review. This is due to the high amendment hurdle which amendments can only be introduced after a two-thirds approval by Congress, followed by a formal national constitutional convention (1).
ReplyDeleteOne way that amendments can change is through Judicial Review,. Active Judicial Review is a widely practiced legal system for common law systems (2). Argentina, which incorporates the practice of Judicial Review, however follows a civil law system (1). A civil law system is characterized by determining the Constitutionality of laws and actions on a case-by-case basis (2). Furthermore laws under the civil system tend to be very long in detailed as one ruling does not affect another and there is a need for great clarity and uniformity among laws (2).
As is characteristic of a civil law society, the Argentine Supreme Court cases are decided based on their own specific circumstances according to law (3). Judges “create” law with their decisions, however these are not necessarily applicable to future cases (3). In this regard, judges have the ability to use precedents (characteristic of common law systems) however they are not required (3). The nature of the Argentine civil law system stems form the Civil Code of Argentina. The civil code “forms the foundation of the system of civil law in Argentina” (3). The civil code was influenced by the Napoleonic code and was necessary to ensure federal coherence and maintain authority over provincial law (3). Its application by judges facilitates decisions and knowledge about the laws of the country, strengthening judicial independence (3).
1.http://www.barefootsworld.net/constit6.html
2.Lecture 11/13/14, Professor McElwain
3.The Political and Legal System in Argentina, Sturm College of Law, University of Denver
4.http://en.wikipedia.org/wiki/Civil_Code_of_Argentina
by Sabrina Weeks-Brittan
ReplyDeleteAs mentioned, the Argentine Constitution can only be amended by a formal constitutional convention, preceded by two-thirds approval by both houses of Congress (1). Despite the relatively large amendment hurdle, it is interesting that the massive reform of the Constitution in 1994 came as a result of then-President Carlos Menem’s desire to be reelected (2). Menem’s successful reforms, which sanctioned his ten-year presidency, illustrates that the power of the Argentine President can extend to amending the Constitution, in spite of the document’s air of rigidity.
Prior to ’94, the Argentine president could only serve one six-year term (3). At that time, Menem was five years into his presidency. Because of a wish for consecutive reelection—previously, not allowed under the Constitution—Menem secretly engaged the leader of the major opposition party, former president Raul Alfonsin (2). The two colluded over constitutional amendments they could both agree on, formalizing this deal with their signature of the Olivos Pact in 1993 (2). The Olivos Pact outlined all of the proposed reforms, including which constitutional clauses to leave alone and which to amend to their desires. Since Menem and Alfonsin’s supporters comprised a majority of the Senate and the House of Deputies, the pact was approved in full and without any alterations by two-thirds congressional approval (2).
Similarly, the Constitutional Convention of 1994 unanimously approved the whole package of amendments agreed upon in the Olivos Pact (2). The 1994 constitutional amendments improved the provinces’ autonomy, established human rights, and helped protect natural resources (4). Though necessary and beneficial, the reforms of ’94 ironically aimed to curb excessive powers of the President. Despite a seemingly rigid amendment process, two men—Menem and Alfonsin—effectively, and radically, overhauled the Argentine Constitution.
1. The Argentine Constitution
2. “Constitution Writing and Conflict Resolution: Argentina 1994,” Princeton University, https://www.princeton.edu/~pcwcr/reports/argentina1994.html
3. “Republic of Argentina,” Political Database of the Americas, http://pdba.georgetown.edu/ElecSys/Argentina/argentina.html
4. Andreassi, Celina, “On Constitutional Reform,” The Argentina Independent, http://www.argentinaindependent.com/currentaffairs/analysis/on-constitutional-reform/
As Jackson informs us in his original post, “the Constitution may be totally or partially amended. The necessity of reform must be declared by Congress with the vote of at least two-thirds of the members; but it shall not be carried out except by an Assembly summoned to that effect” (1). Furthermore, Jackson mentions the process of informal amendments, but I think that this part of Jackson’s analysis could have been more in-depth.
ReplyDeleteSince the requirement of a constitutional convention followed by a 2/3 majority is such a massive and difficult requirement to amend a constitution, the Argentine Constitution also permits informal amendments via Judicial Review (2). Jackson mentions the allowance of amparo in the 1994 constitutional reform, but I think that it is important that the issue of informal amendments and judicial review is further explored. The Argentinian Constitution does not directly give courts the power to enforce, or decide upon, the constitutionality of “congressional statuses or executive action,” but in 1863 the Supreme Court assumed this power of judicial review, and have taken the responsibility to declared legislation unconstitutional if they deem necessary (3). Although the Supreme Court assumed the power of declaring legislation unconstitutional, it took until 1888 for the Supreme Court to first declare a statute enacted by Congress as unconstitutional. You discuss the inflexibility and unrest in the early Argentinian government, but I think that your post could have been made a lot stronger if you had included more information about the long time presence of an informal amendment process via judicial review.
(1) The Argentine Constitution, Section 30
(2) Judicial Review of Constitutionality in Argentina, https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=45+Duq.+L.+Rev.+409&key=5f64a84773151a70c1237ddbc4860ecf
(3) Judicial Review of Constitutionality in Argentina, https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=45+Duq.+L.+Rev.+409&key=5f64a84773151a70c1237ddbc4860ecf